Supreme Court New South Wales Medium Neutral Citation: R v Qaumi & Ors (No 52) [2016] NSWSC 1065 Hearing dates: 1 August 2016 Date of orders: 01 August 2016 Decision date: 08 August 2016 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Evidentiary rulings made – see paragraphs [13], [15], [25]. Catchwords: CRIMINAL LAW – listening device recording – assessment of relevance and probative value – separate objections calling for separate consideration – rulings made in the course of argument – assessment of danger of unfair prejudice – where evidence would be unfairly prejudicial to another accused – where evidence supportive of expressions allegedly used in earlier conversations – taking over the city – the city could have been ours – whether wishful musings Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v Qaumi & Ors (No 55) [2016] NSWSC 1068 Category: Procedural and other rulings Parties: Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Mohammed Zarshoy Mohammed Kalal Representation: Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Quami) N Carroll(J Quami) R Driels (Zarshoy) G Clarke (Kalal) Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten& Co (M Quami) Bannisters Lawyers (J Quami) Zahr Lawyers (Zarshoy) Hallak Law (Kalal) File Number(s): Farhad Quami - 2014/6809; 2014/315201; 2014/315252Mumtaz Quami – 2014/6813; 2014/315251; 2014/315260Jamil Quami - 2013/336086; 2014/18164; 2014315253Mohammad Zarshoy – 2014/316236Mohammad Kalal - 2013/344739; 2014/66939 Publication restriction: No publication until the conclusion of the trial. Judgment 1. On Monday 1 August 2016, having heard submissions from counsel for Farhad Qaumi and Jamil Qaumi and the learned Crown Prosecutor, I made a number of rulings in relation to the admissibility of certain parts of a listening device recording and associated transcript. 2. The rulings were made very shortly after submissions were heard and indicated to counsel. These are my brief reasons for those rulings. 3. The legal argument in respect of these objections was conducted in the absence of all five accused. This was done with the consent of the Crown Prosecutor and all five accused. [1] That procedure, whilst generally undesirable, was necessary because a violent incident had occurred in the dock at around 2.20pm which necessitated the officers from the Department of Corrective Services to restrain the accused and remove them from the courtroom. It was obvious to all concerned that bringing the accused back into the courtroom at that time was likely, if not certainly, to result in further violence between them. Accordingly, the personal safety of the accused was a factor in making the decision to hear the legal argument in their absence. Further, counsel for Jamil Qaumi indicated that her client was aware of the objections to be taken and, I gather, the substance of the objections. I assume that the same situation applied with respect to Farhad Qaumi who, on my observation, has taken a very "hands on" approach to instructing his counsel, including in relation to questions of admissibility of evidence. The remaining accused were not concerned with the objection although the accused Mohammed Kalal was a party to some of the conversation. Any objection that he took was resolved between counsel and he was represented by counsel when the argument proceeded. I have elsewhere provided reasons for the decision to proceed in the absence of the accused for the limited purpose of hearing certain legal submissions: R v Qaumi & Ors (No 55) [2016] NSWSC 1068. 4. The recording in question was made at the Long Bay gaol on 23 December 2013. I have not listened to the recording itself but the parties jointly submitted that the it is of poor quality. I have received and read a transcript of the recording. While ultimately it will be a question for the jury to determine precisely what words were used and by whom the parties agreed that the transcript (marked as exhibit VD-MMM on the voir dire) was sufficiently accurate to facilitate the rulings that I needed to make. 5. The transcript records a conversation between Farhad Qaumi and three other members, or former members, of the Brothers for Life at Blacktown namely Mohammed Kalal (a co-accused in the present case), Nazir Akbari and Harris Sadat. It is unnecessary to go into the detail of the whole of the recording. Rather, I will focus on the parts that were subject to objection. 6. The first objection (taken by Farhad Qaumi) appears on page 3 of the transcript and concerns the following passage: "FQ – "It's not Afghan name brother. If this guy stays out here brother they're fucked 'cause you know me brother I will get a team together like that (clicks fingers) two seconds brother. I will gee every cunt up brother (Mowie laughing) and I will say get this guy back get this guy back…muffled." 1. It was submitted that this passage was prejudicial to Farhad Qaumi and its relevance and probative value was questionable for a variety of reasons. 2. It was submitted that the things attributed to Farhad Qaumi simply could not be true because the criminal group, as alleged by the Crown, had largely been broken up by the time of the conversation. This was the result of the arrest of a large number of members. Accordingly, it was said that he was not in a position to "get a team together". Further, it was submitted that it was simply unclear what the accused was talking about or whether it had any relevance. Prejudice flowed from the conversation because it appeared to involve some form of retribution directed to the person described only as "this guy". It was submitted that it was unclear precisely what was being spoken of or contemplated. 3. The Crown submitted that the reference to getting "a team together" had significant probative value in two respects. First, it was supportive of the Crown case that Farhad Qaumi was both a member and the leader of the criminal group. Secondly, it was submitted that the reference to getting teams together was capable of providing support to the evidence of Witness L who testified to a meeting in which Farhad Qaumi had discussed putting together three teams of shooters to carry out some of the crimes with which he presently stands charged. The Crown submitted that somewhat similar evidence was also given by Witness M although she referred to "squads". 4. In assessing the extent to which the evidence could rationally affect a fact in issue, I took into account the submissions made by Senior Counsel as well as the timing of the conversation, which is to say 4 to 8 weeks after the shooting incidents with which Mr Qaumi is now charged. I also considered the nature of the attack that was made on the credibility of witness L. That attack included describing him as a "cold-blooded killer" and suggesting that he was largely responsible for a number of the shootings either by himself or with other Crown witnesses. 5. The attack on his credibility was particularly forceful in relation to the meeting in which he alleged that there was a reference to putting together teams of shooters. That evidence was subject to considerable ridicule when he was unable to identify its location at a park near the Sydney Harbour. It was put to him plainly and directly that he had fabricated that part of his evidence in its entirety and that no such meeting took place at all. Reliance was placed on his inability to identify the location of the meeting and on CCTV footage taken at the Sydney Casino which, according to the defence case, showed or suggested that his evidence as to how people travelled away from the Casino and to the meeting must be false. 6. Evidence is not taken to be irrelevant merely because it relates only to the credibility of a witness: s 55(2)(a) of the Evidence Act 1995 (NSW). In the present instance, I accept the Crown submission that the evidence is also relevant to the issue of whether Farhad Qaumi was the leader of the Brothers for Life at Blacktown. Accordingly, the evidence is not caught by the credibility rule and there was no suggestion that it was. 7. I came to the conclusion that the probative value of the evidence outweighed the potential for prejudice and ruled the evidence to be admissible. 8. The second objection (taken by both Jamil Qaumi and Farhad Qaumi) concerned the following passage on page 6 of the transcript: "NA – yeah wait um [send your brothers lawyers there to get statements from all of them] statement what fucking leader bro. How is your brother a leader? FQ – Yeah but that doesn't happen now, that happens later. NA – Later huh? FQ – That happens later. That's when all the boys will go together and write a statement to say this guy didn't know nothing about no shootings. NA – What leader bro? FQ – But him, him… he will beat it bro, he will beat it bro… but Witness D, Witness D's gone brother. Witness I, and Witness D, He's gotta write a statement to say that this guy didn't know nothing. NA [Nah, nah he will talk to Witness D in his room]. He says like I'm gonna do it. Be he hasn't done shit. He hasn't done bro." 1. I ruled that this evidence was inadmissible. 2. In a trial of Farhad Qaumi alone, I may have taken the view that this evidence was admissible in that it was capable of demonstrating a consciousness of guilt in that it suggested that Farhad Qaumi was well aware of the activities of his brother, Jamil Qaumi. However, this is a joint trial and the alleged consciousness of guilt in relation to Farhad Qaumi stems from his knowledge of the (assumed for the purpose of the argument) guilt of Jamil Qaumi. It is difficult to conceive of a direction that would be capable of overcoming the prejudice to Jamil Qaumi in relation to evidence that he is not in a position to test or combat. In any event the probative value in Farhad Qaumi's case, in the overall context of the evidence and issues being litigated in the trial, was such that the safer course was to exclude the evidence. I came to the view that it was inadmissible under s 135(a) of the Evidence Act and so it was excluded. 3. A third objection (taken by Jamil Qaumi) concerned the following words allegedly said by Farhad Qaumi: ""FQ – Youse are lions. Youse act like lions brothers … and walk lions borther everyone here knows he's my brother aye there all like shiting it (laughs)." 1. That objection was resolved in the course of argument when the Crown agreed not to lead the words that are italicised in the above quotation. 2. A fourth objection (taken by Jamil Qaumi) to the words "he's a soldier brother. He's like Witness D, he's a fucking soldier cunt. He's a soldier bro. He's a solider bro" was withdrawn in the course of the argument. 3. The final objection (taken by Farhad Qaumi) is to the following passage recorded on page 8 of the transcript: "FQ – I will tell you something brother… I will tell you something now… if these boys didn't get locked up that night brother this city was ours. Mowie/N.A. – It is still ours. FQ – It still ours brother… if these boys didn't get locked up that night brother this city was ours brother… because the others were all locked up." 1. There is a dispute (not presently relevant) as to whether the words "it is still ours" was correctly attributed to the accused Kalal ("Mowie") or whether they were in fact uttered by Nasir Akbari ("NA"). 2. It was submitted that the statements by Farhad Qaumi were "no more than a statement that the other team [that is, the Bankstown Chapter] had been all locked up so they [That is, the Blacktown Chapter] were, in effect, the last men standing." He submitted that "it is in effect a wishful musing of how things could have been otherwise because now everyone is in gaol." The submission continued "the prejudice in it is that the jury might think it means literally taking over the city, whereas it is regarded logically, what they are really talking about is we will end up like the BHP of the gang business, the biggest and the best". [2] 3. The Crown relied on the fact that at an early meeting of the group Farhad Qaumi had made comments about "taking over the city". Contrary to the submissions of Senior Counsel, it was quite clear that the references to "taking over the city" in the earlier conversation (if it is accepted) and the reference (in the recorded conversation) to "the city was ours" were references to taking over a particular portion of gangland turf previously occupied and controlled by the Brothers for Life, Bankstown and not "literally taking over the city". That is at least a tenable inference that the jury might draw if it accepts the evidence given earlier in the trial. The earlier evidence receives some support the comment recorded by the listening device. It is the prosecution case that the motivation for some of the shooting incidents was an attempt to "wipe out" the rival chapter of the Brothers for Life and to take over their territory. 4. I was of the view that the evidence is relevant to the issue of whether Farhad Qaumi had earlier made reference to taking over the city and also to one of the motives attributed to him by the prosecution. It has a high degree of probative value to those issues. Against that there is little danger of unfair prejudice in the jury hearing the actual words uttered by Farhad Qaumi as recorded by a listening device. 5. Accordingly I ruled that the evidence was admissible. ******* Endnotes 1. Transcript (T) 5285-5291. 2. T 5307. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2016